Citation Nr: 21025211 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 08-00 317A DATE: April 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of post-operative internal derangement of the left knee with osteoarthritis (left knee osteoarthritis) is denied. Prior to December 29, 2020, entitlement to a rating of 20 percent, but no higher, for residuals of post-operative internal derangement of the left knee based on recurrent subluxation and lateral instability (left knee instability), is granted. For the entire period on appeal, entitlement to a rating in excess of 20 percent for residuals of post-operative internal derangement of the left knee based on recurrent subluxation and lateral instability (left knee instability), is denied. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran’s left knee osteoarthritis has been productive of painful motion, without incapacitating exacerbations, flexion limited to 45 degrees or more, extension limited to 10 degrees or more, or effusion. 2. Prior to December 29, 2020, resolving all reasonable doubt in favor of the Veteran, his left knee disability has manifested in moderate instability. 3. During the entire appeal period, the Veteran’s left knee disability has manifested in no more than moderate instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran’s left knee osteoarthritis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.40, 4.45, Diagnostic Codes (DCs) 5003-5260. 2. Prior to December 29, 2020, the criteria for a rating of 20 percent, but no higher, for the Veteran’s left knee instability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 3. During the entire period on appeal, the criteria for a rating in excess of 20 percent for the Veteran’s left knee instability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1970 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in September 2011 and December 2016 to the agency of original jurisdiction (AOJ) for further development. In July 2018, the Board granted a disability rating of 10 percent for the left knee osteoarthritis and denied a disability rating in excess of 10 percent for left knee instability. The Veteran appealed this determination to the United States Court of Appeals for the Veterans Claims (Court). In a February 2020 order, the Court vacated the Board’s decision as it pertained to the denial of a disability rating in excess of 10 percent for the left knee osteoarthritis and left knee instability. In November 2020, the Board remanded the appeal to the AOJ for additional development. The Board’s remand directives have been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).    In a January 2021 rating decision, the AOJ increased the Veteran’s disability rating for his left knee instability to 20 percent effective December 29, 2020, the date of the most recent VA examination. As that rating constitutes less than a full grant of the benefit sought, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). To more accurately reflect the scope of the Veteran’s claims, the issues have been recharacterized as shown on the title page. 1. Entitlement to a higher rating for left knee osteoarthritis. 2. Entitlement to a higher rating for left knee instability. The Veteran’s left knee osteoarthritis is currently rated 10 percent disabling from August 26, 2011, under DC 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. In this case, DC 5003 refers to degenerative arthritis (other than post-traumatic), rated as limitation of motion. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. For the reasons that follow, the Board finds that a higher rating for the Veteran’s left knee osteoarthritis is not warranted. The Veteran’s left knee instability is currently rated 10 percent disabling prior to December 29, 2020, and 20 percent disabling after December 29, 2020. For the reasons that follow, the Board finds that a rating of 20 percent for the entire appeal period is warranted. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). “Although pain may cause a functional loss, pain itself does not constitute functional loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original). Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board must also consider whether VA examiners have elicited information concerning the “severity, frequency, duration, or functional loss manifestations” of such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Disabilities of the knee are rated pursuant to 38 C.F.R. § 4.71a, DCs 5256-5263. DC 5256 provides evaluations for ankylosis of the knee. DC 5257 provides evaluations for recurrent subluxation and lateral instability. A 10 percent rating will be awarded for slight instability, a 20 percent rating will be awarded for moderate instability, and a 30 percent rating will be awarded for severe instability. The words “slight,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence so that its decisions are equitable and just. See 38 C.F.R. § 4.6. DC 5258 provides a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. DCs 5260 and 5261 provide the rating criteria for limitation of knee motion. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a Plate II. DC 5260 provides that limitation of knee flexion to 60 degrees is rated as noncompensable; limitation of knee flexion to 45 degrees is rated as 10 percent disabling; and limitation of knee flexion to 30 degrees is rated as 20 percent disabling. Limitation of flexion to 15 degrees is rated as 30 percent disabling. DC 5261 provides that limitation of knee extension to 5 degrees is rated as noncompensable; limitation of knee extension to 10 degrees is rated as 10 percent disabling; limitation of knee extension to 15 degrees is rated as 20 percent disabling; limitation of knee extension to 20 degrees is rated as 30 percent disabling; limitation of knee extension to 30 degrees is rated as 40 percent disabling; and limitation of knee extension to 45 degrees is rated as 50 percent disabling. DC 5262 provides evaluations for impairment of the tibia and fibula. DC 5263 provides a 10 percent rating for acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing. VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, DC 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, DC 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either DC 5260 or DC 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257), a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA’s General Counsel has also stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Moreover, compensating a claimant under DC 5257 and DC 5258 (dislocated cartilage with locking pain and effusion) also does not constitute pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that that ratings under DC 5257 and 5260 and 5261 do not necessarily preclude ratings under DCs 5258 and 5259). As a preliminary matter, during the pendency of this appeal, applicable rating criteria for the Schedule for Rating Disabilities of the Musculoskeletal System and Muscle Injuries were revised effective February 7, 2021. 85 Fed. Reg. 76453 (November 30, 2020). When regulations are revised during the course of an appeal, the Board must consider the claim in light of both the former and revised schedular criteria and to apply the criteria that is more favorable to the Veteran. However, if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change, even though there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the former criteria are more favorable to the Veteran. Accordingly, the Veteran’s claim will be adjudicated under the former criteria. Turning to the evidence of record, the Veteran initially underwent a VA examination for his left knee disabilities in May 2006. The Veteran reported pain and swelling in the left knee when walking. He also reported using a cane while ambulating and not being able to do any work. Upon examination, the examiner noted pain in both knees on flexion. Repetitive use testing showed pain and additional 10-degree limitation of range of motion (ROM) on flexion (0 to 130 degrees). No limitation on extension of the left knee was noted. No increase in weakness or fatigue was noted. The examiner noted that the Veteran’s gait is antalgic and unstable, with the need to use a cane. No ankylosis was noted. In a December 2006 addendum VA examination report, the examiner noted the Veteran’s complaints of bilateral knee pain, exacerbated by sitting, rising and the use of stairs. The Veteran also reported a history of knees giving way. He was found to have patellar pain syndrome from lateral patellar subluxation. The use of patellar subluxation knee brace was noted. During an October 2007 VA examination for his left knee disabilities, the Veteran reported pain on rising from seated position, when using stairs, and kneeling. He also reported daily flare-ups and his knees occasionally giving way. The objective examination revealed some patellar crepitus and pain with compression. The examiner noted that the Veteran is not able to do repetitive stair climbing, kneeling and rising. Flexion of the left knee was limited to 130 degrees. X-rays showed a slight lateral tilt of the left patella and a history of left patellar subluxation was noted. The Veteran underwent another VA examination for his left knee disabilities in October 2014. The Veteran reported experiencing continuous pain and weakness in his knees. He reported difficulties with rising, stability and using stairs. Upon examination, left knee flexion was limited to 130 degrees with painful motion at 110 degrees. No limitation of motion on extension was noted. No additional limitation in ROM on repetitive use testing was noted. The examiner noted that his left knee disabilities result in functional loss due to weakened movement and pain on movement. Muscle strength test results were within normal limits. Regular use of cane was noted. The examiner concluded that the Veteran’s left knee disabilities do not impact his ability to work. The examiner was unable to ascertain the degree of additional loss of ROM during flare-ups as the examination did not take place during a flare-up. The examiner also noted that there are no objective findings of lateral instability or recurrent subluxation. Pursuant to the November 2020 Board remand directives, the Veteran was afforded another VA examination in December 2020. The Veteran reported having issues with both of his knees. He reported that the knees cannot be in a standstill position and he has to change both knees all the time while sitting or standing due to pain. He admitted that walking is a bit more manageable, with the exception of walking downhill or going down the stairs, which causes pain. The Veteran reported that humid weather exacerbates the pain. He is unable to run or jog. On examination, left knee flexion was limited to 90 degrees with objective evidence of painful motion on flexion. No limitation on extension was noted. Repetitive use testing showed no additional limitation of flexion or extension bilaterally. The examiner noted that pain significantly limits the Veteran’s functional ability with repeated use over a period of time. The examiner also noted that pain significantly limits the Veteran’s functional ability with flare-ups. However, no additional limitation of ROM during flare-ups was noted. Muscle strength test results were within normal limits. Anterior, posterior, and medial instability tests results were normal, while lateral instability was moderately abnormal. No ankylosis was noted. The examiner noted a history of a slight recurrent subluxation and lateral instability in the left knee. Constant use of a cane for knee osteoarthritis and instability was noted. No objective evidence of pain on non-weight bearing was noted. Passive ROM was noted as the same as active ROM. The examiner concluded that there is a worsening of the Veteran’s symptoms, with no change to or additional diagnosis. The Board is cognizant that all of the examinations during the appeal period may not include all necessary findings as required by Correia and Sharp. See, supra. However, the examinations together accurately and sympathetically reveal the Veteran’s functional limitations. Further, VA treatment records throughout the appeal period also show complaints of weakness, instability, and pain. Specifically, a January 2006 VA treatment record shows that the Veteran reported pain and instability in both knees. He also reported difficulties with using stairs or ambulating on decline surfaces. The Veteran was found to have congenital ligamentis laxity in the left knee, which may contribute to instability and falls. In March 2006, the Veteran underwent a fall risk assessment. See VA treatment records. No recent falls were noted. However, the use of a cane and gait weakness were noted. The Veteran’s total assessment score was in the “high risk for falls” category. An August 2011 VA treatment record shows that the Veteran had a fall incident with knee pain. The use of a knee brace was noted. A January 2012 VA treatment record shows that the Veteran reported his knees giving way and using a cane for imbalance. Mild crepitus was noted. Knee flexion was limited to 125 degrees bilaterally. Slight muscle weakness was noted. The Veteran was issued knee braces. A November 2014 VA treatment note shows that the Veteran reported an issue with instability and pain. A history of a recent fall on stairs was noted. The objective testing showed limited ROM in the left knee from 5 to 90 degrees. In January 2015, the Veteran was diagnosed with bilateral knee instability and was issued a fitted knee orthosis. See VA treatment records. An August 2015 VA treatment record shows that the Veteran had an incident of his knees giving out, causing him to fall and hit his rib on the table. A May 2016 VA treatment record shows that the Veteran reported pain with walking, weight bearing and bending. The use of a brace was noted. The objective testing showed limited ROM in the left knee from 0 to 130 degrees. Antalgic gait was noted. New knee braces were ordered. A July 2016 VA treatment record reveals another incident of the Veteran’s knees giving out, causing him to land on his both hands. Slight left knee swelling and tenderness, with normal ROM and full weight bearing were noted. An October 2017 VA treatment record shows the Veteran’s reports of his knees giving out and him falling to the ground. A November 2017 VA treatment record describes an incident of the Veteran’s knee buckling while walking down the hill, causing him to sprain his ankle. Left knee injury with chronic instability was noted. The Veteran was prescribed knee braces. A February 2018 VA treatment record shows a finding of left knee instability with acute pain and swelling. The use of a cane was noted. Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted pursuant to DC 5003. A rating of 20 percent under DC 5003 requires evidence of occasional incapacitating exacerbations. The Board notes that although DC 5003 does not define “incapacitating exacerbation,” the analogous term, “incapacitating episode,” is defined as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note 1; 38 C.F.R. § 4.114, DC 7345, 7354, Note 2. In this case, incapacitating exacerbations of left knee osteoarthritis are not indicated by the evidence currently before the Board. Therefore, based on the preponderance of the evidence, the Board finds that the current 10 percent rating adequately contemplates any functional impairment that the Veteran may experience as a result of his right knee osteoarthritis. Further, when resolving all reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating for right knee instability under DC 5257 is warranted for the entire appeal period. Although the October 2014 VA examination report did not note any instability, the Veteran’s lay statements and VA treatment records throughout the entire appeal period show complaints and evidence of instability. See English v. Wilkie, 30 Vet. App. 347 (2018). Additionally, the symptoms described by the Veteran related to his instability have generally remained consistent throughout the entire appeal period, including prior to December 29, 2020. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating for left knee instability is warranted for the entire appeal period. However, the Board finds that a higher rating under DC 5257 is not warranted as the Veteran’s left knee instability has not more nearly approximated a 30 percent rating. The evidence of record shows that the Veteran has suffered approximately five documented falls throughout the appeal period. Additionally, joint instability test results at the October 2014 VA examination were normal. Anterior, posterior, and medial instability test results during December 2020 VA examination were also normal. Lateral instability was moderately abnormal. Further, the December 2020 VA examiner characterized the Veteran’s instability as slight, not moderate or severe. Accordingly, the Board finds that the Veteran’s symptoms more closely approximate moderate during the entire appeal period, as opposed to severe symptoms, and as such, a 30 percent rating is not appropriate. Additionally, the Board finds that a separate rating for limitation of flexion and extension of the left knee is not warranted. The evidence of record shows that the Veteran’s flexion has not been limited to more than 90 degrees, including during flare-ups or with repeated use over time. The Veteran’s left knee extension has not been limited during the entire appeal period. Thus, a higher rating is not warranted. As to additional rating due to functional loss, even though the October 2014 examiner reported that symptoms of pain, weakness, fatigability and/or incoordination caused additional functional loss during flares or with repeated use overtime, the examiner did not provide an estimate regarding additional functional loss because the Veteran was not being examined during a flare-up. Such is not compliant with Sharp. See, supra. However, the December 2020 VA examiner also noted that symptoms such as pain, weakness, fatigue, or incoordination during flare-ups or with repeated use over time caused additional functional loss, but no additional limitation of ROM during flare-ups was noted. Sharp, supra. Thus, a higher rating due to functional loss is not warranted. The Board has considered whether compensable ratings might be assigned under DC 5258. While the Veteran has reported some swelling on occasion, there is no history of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in the left knee shown in the treatment records or VA examination reports. Evidence of effusion is not present. Thus, an additional rating under DC 5258 is not warranted. There is also no evidence of a meniscus (semilunar cartilage.) condition. Thus, a rating under DC 5259 is not warranted. Additionally, there are no objective medical findings of, and the Veteran has not alleged, ankylosis or restriction of motion consistent with ankylosis, impairment of the tibia or fibula, or genu recurvatum. In the absence of such findings, evaluating the Veteran’s right knee under DCs 5256, 5262, or 5263 is not warranted. See 38 C.F.R. § 4.71a. The Board acknowledges the Veteran’s reports of painful motion as well as swelling, difficulty walking, standing, and using stairs. However, the evidence of record does not show that the Veteran is unable to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, as evidenced by the fact that the Veteran goes for long walks daily. See August 2016 and September 2020 VA treatment records. Thus, the Board finds that the Veteran’s symptoms do not warrant a rating under DC 5260 or 5261 and are adequately compensated by the rating currently assigned for painful, limited motion caused by his left knee disabilities. 38 C.F.R. §§ 4.40, 4.45; Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). In sum, a rating in excess of 10 percent for the Veteran’s left knee osteoarthritis is not warranted. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107(b). Further, a 20 percent rating, but no higher, for moderate right knee instability is warranted for the entire appeal period.   Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.